Report No. 198
Need for a law on various aspects of witness protection.- Supreme Court's observations
1.8 In the order dated 8.8.2003 made by the Supreme Court in National Human Rights Commission v. State of Gujarat and Others, 2003 (9) SCALE 329, the Supreme Court referred to the need for legislation on the subject. In the judgment of the High Court of Delhi, dated 14th October 2003 (Crl.W.No.247 of 2002) in Ms Neelam Katara v. Union of India, certain directions/ guidelines on witness protection have been issued, pending the making of legislation but these are only a beginning.
1.9 In the recent judgment of the Supreme Court in PUCL v. Union of India, 2003 (10) SCALE 967 while dealing with the validity of section 30 of the Prevention of Terrorism Act, 2002, the Supreme Court has referred in detail to the subject of 'protection of the witnesses' and to the need to maintain a just balance between the rights of the accused for a fair trial (which includes the right to cross examine the prosecution witnesses in open court) and to the need to enable (1) prosecution witnesses whose identity is known to the accused to give evidence freely with being overawed by the presence of the accused in the Court and (2) protection of the identity of witnesses who are not known to the accused.- by means of devices like video-screen which preclude the accused from seeing the witness even though the Court and defence counsel will be able to see and watch his demeanour.
1.10 Zahaira Habibulla H. Sheikh & Another v. State of Gujarat and Others (2004) 4 SCALE 375, (the Best Bakery Case), was a case involving the killing of fourteen persons in a communal riot in Gujarat. 37 of the prosecution witnesses, including several eye witnesses, some of them relatives of the deceased, turned hostile at the trial. The 21 accused persons were all acquitted by the trial court. The appeal by the State of Gujarat was dismissed by the High Court. While reversing the acquittal and ordering a retrial outside Gujarat, in the State of Maharashtra, the Supreme Court made several observations on the question of protection of witnesses.
In this case too, the Supreme Court observed that (p.395) "Legislative measures to emphasise prohibition against tampering with witnesses, victim or informant, have become the imminent and inevitable need of the day". The Court also referred (p.399) to "Witness Protection Programmes" formulated in various countries. It said: "The Witness Protection Programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses". In fact, the Court has since sought responses from various States on the question of witness protection.
1.11 In Sakshi v. Union of India, 2004 (6) SCALE 15 (at p.32), the Supreme Court while dealing with the plea for enlargement of the definition of the word 'rape', and protection of victims of child sexual abuse, observed that in matters relating to such sexual offences there need to provide victim protection at the time of recording statement made before the Court. On the need for legislation, the Supreme Court again observed:
"We hope and trust that Parliament will give serious attention to the points highlighted by the petitioner and make appropriate suggestions with all the promptness it deserves."
1.12 The Law Commission has taken up the subject suo motu on account of the observations of the Supreme Court and also because of immediate importance of the subject in our country. The Commission has prepared this Consultation Paper in order to invite responses from all sections of society. After receiving the responses, it will make its final recommendations possibly along with a draft Bill.
1.13 Part I of the Consultation Paper deals with general matters; Part II with protection of witness identity vis-à-vis rights of accused. Witness Protection Programmes are discussed in Part III. Part IV contains a fairly exhaustive 'Questionnaire' to which the Commission hopes to receive responses from a wide cross-section of people.